Can I Keep a Witness?

In the Kitzmiller v Dover Area School District (Kitzmiller) case, the defense went to trial with a fraction of the expert witnesses that the Thomas More Law Center (TMLC) originally named to help make its case. The story of how this came about and what it meant for the case reflects events similar to those in McLean v Arkansas.

NCSE Public Information Director Susan Spath spent most of two months in early 2005 on analysis of the works of John Angus Campbell, a professor of rhetoric at the University of Memphis. TMLC named Campbell as an expert witness for the defense in Kitzmiller. Campbell, a Fellow of the Discovery Institute Center for Science and Culture (CSC), wrote an expert report. It was Spath’s job to dig through the report and Campbell’s writings to provide the plaintiff’s legal team, and especially Pepper Hamilton attorney Thomas Schmidt III, with items of interest to ask Campbell about at his deposition.

This was a standard procedure for all the named expert witnesses in the case: look at the expert report to see what arguments were being put on the table, see what other things had been claimed by the expert elsewhere, and find out how best to use the defense witnesses to advance the plaintiffs’ case. A designated NCSE staffer was assigned to each defense expert to aid the attorney on the plaintiffs’ team who would question the witness at the deposition. In the case of William A Dembski, the plaintiffs had also named a rebuttal expert, Jeffrey O Shallit of the University of Waterloo.

NCSE’s Spath had the assistance of activists who helped contribute to a Wiki page of criticisms and possible questions for Campbell’s deposition that was scheduled for June 2, 2005. At 9 am on that day, plaintiffs’ attorney Schmidt and legal assistant Kate Henslow were on hand in Memphis, Tennessee, to take Campbell’s deposition. Campbell, TMLC attorney Pat Gillen, and an unidentified lawyer from the Discovery Institute arrived, and Gillen made an announcement: John Angus Campbell was withdrawn as an expert witness. There would be no deposition.

Disappearing Experts

Campbell was merely the first defense expert to withdraw from the case. On June 10, CSC Senior Fellow William A Dembski was withdrawn under circumstances that remain ambiguous to this day. CSC Director Stephen C Meyer’s withdrawal followed on June 13. Philosophy professor Warren Nord of the University of North Carolina, Chapel Hill, and Richard M Carpenter, an education professor at the University of Colorado, Colorado Springs and a commentator for Focus on the Family, were withdrawn between the beginning of the trial itself and when they would have testified. The only expert witnesses left to the defense in the trial were CSC Senior Fellow Michael J Behe, CSC Fellow Scott A Minnich, and Steve Fuller, a sociologist of science at the University of Warwick.

Anti-evolution watchers will recall the McLean v Arkansas case and how some defense experts also failed to deliver testimony there. Most notably, San Francisco State University professor Dean Kenyon was originally slated to testify, was deposed, and even was in Little Rock, Arkansas, during part of the trial, but never went on the stand. In both McLean and Kitzmiller, the experts testifying for the plaintiffs did deliver their testimony as planned.

The common explanation attached to expert witness withdrawals in the Kitzmiller case was that the DI expert witnesses wanted to have their own legal representation during depositions, and not be represented only by TMLC attorneys. This does not explain the eventual testimony of Behe and Minnich, or the withdrawal of Nord and Carpenter, who were not officially affiliated with the DI. In the case of Dembski’s withdrawal, TMLC issued a statement shortly after his withdrawal citing Dembski’s request for independent legal representation and TMLC’s unwillingness to permit such, though they would allow it for Stephen Meyer. Later, TMLC entered a brief in support of a motion to dismiss the case in which they cited Dembski’s withdrawal as being premised upon his desire to protect his affiliates at the Foundation for Thought and Ethics (FTE), which published the "intelligent design" textbook at the center of the case. (TMLC also suggested that it was an indication of the pervasive negative influence of "Darwinism" that Dembski should be compelled to take that step.) As Ed Brayton noted in his weblog (http://scienceblogs.com/dispatches/2005/06/conflicting_explanations_for_w.php), these two constructions of events are not reconcilable.

It is clear that there were behind-the-scenes problems between the Thomas More Law Center as attorneys for the Dover school district and the Discovery Institute as the source of most of the expert witnesses for the defense. These hidden tensions briefly became very public during a televised panel discussion hosted by the American Enterprise Institute during the trial phase of the case. The DI representative, Mark Ryland, asserted that the DI had never endorsed policies requiring the teaching of "intelligent design" in science classes. TMLC attorney Richard Thompson contradicted Ryland, citing the various legal briefs and other promotional materials produced by the DI for the apparent purpose of encouraging school boards to insert ID into their curricula.

Discovery Institute analyst Seth Cooper sent an e-mail to the Dover Area School Board in late 2004 stating that its proposed policy was likely to lead to a lawsuit and that it would be better to withdraw this policy and construct a new one that would meet with DI approval. The DI apparently was concerned enough about the Dover case that it felt that there was a considerable risk of a loss in court that could produce a legal decision that could damage the DI’s ability to promote ID as science. TMLC’s intent to use the Dover policy as a test case ignored the cautionary note that the DI had given.

The withdrawals of the expert witnesses began after depositions by Michael Behe and Scott Minnich were completed. It cannot be ruled out that the DI realized just how well prepared the plaintiffs’ legal team was in each of these and concluded that exposing more of the CSC fellows to that level of scrutiny was not in its best interests.

Where’s the controversy?

We may never know with certainty why the five defense expert witnesses were withdrawn from the roster. What is clear is the effect this had on the topics addressed at the trial. TMLC argued that ID should be taught because ID was science, and this provided the secular purpose that would set aside the Establishment Clause claims being made by the plaintiffs. To this end, TMLC put a biochemist, a microbiologist, and a sociologist of science on the witness stand. They had no philosopher of science to rebut plaintiffs’ experts Robert Pennock and Barbara Forrest. They had no educator to rebut Brian Alters. They had no theologian to rebut John Haught. They had no paleontologist to rebut Kevin Padian. In fact, the only plaintiffs’ expert whose testimony the remaining TMLC experts might speak to was that of Ken Miller, who testified on both science and science education, as a cell biologist and co-author of the high school textbook used in the Dover school system.

This is not to say that the coverage that might have been provided by the missing experts would have been perfect. Even if all the originally named experts had testified, TMLC would have fielded no theologians with experience comparable to John Haught. The defense experts who were to speak to issues of science education, Campbell, Nord, and Carpenter, did not have the sort of professional recognition in the field that plaintiffs’ expert Brian Alters brought to the case. In opposition to Kevin Padian, the defense would have called upon philosopher of science Stephen C Meyer, whose claim to expertise in paleontology rested upon the publication of a single review paper that was later repudiated by the publishing journal and his earlier career as a petroleum geologist. The gaps in coverage of defense expert testimony were noted at various points in Judge Jones’s decision, as he would write of statements given by plaintiffs’ experts Miller and Padian, their arguments were made in unrebutted testimony.

The tale of the disappearing witnesses in the Kitzmiller case reflects the earlier experience of the McLean case. While it is unknown exactly why the witnesses were withdrawn, their absence made an appreciable difference in the case. As in the McLean case, the missing witnesses left much of the case made by the experts for the plaintiffs unanswered, giving the strong — and accurate — impression that the defense had no case to make, and contributing to the forcefulness of the decisions handed down in each case.